Massachusetts Committee Holds Hearing on Bills to Take on Asset Forfeiture, Close Federal Loophole

BOSTON, Mass. (June 12, 2017) – Last week, an important Massachusetts joint committee held a hearing on three bills that would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases.The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds in most situations.

Rep. Leonard Mirra (R-West Newbury) introduced House Bill 3114 (H3114) earlier this year. The legislation would reform Massachusetts law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Currently Massachusetts law enforcement can take property even if a person is never found guilt of a crime, or even charged.

Under the proposed law, all proceeds from asset forfeiture, after payment of certain expenses to law enforcement and prosecutors, would go into the general fund. Currently law enforcement agencies can keep up to 69.5 percent of forfeiture proceeds. This change would reduce the perverse policing for profit incentives in the current law.

Another bill in the House (H2316), and one in the Senate (S820), would also require a conviction before prosecutors could proceed with forfeiture.

The Joint Committee on The Judiciary held a hearing on all three bills last Monday. This is an important first step in the legislative process in Massachusetts.

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ADDRESSES FEDERAL PROGRAMS

Provisions in H3114 also close a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program. The proposed law would specifically prohibit this practice in most cases.

(a) No unit of government of the Commonwealth may transfer a criminal investigation or proceeding to the federal government to circumvent forfeiture law of the Commonwealth. (b) For a government unit of the Commonwealth to transfer a criminal investigation or proceeding that includes forfeiture to the federal government, a court of the Commonwealth shall affirmatively find that: (1) the suspected criminal activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer; or (2) the seized property is forfeitable only as a violation of federal law.

Any asset forfeiture funds paid by the federal government would have to be deposited in the general fund after the payment of certain law enforcement agency expenses.

H2316 and S820 also have provisions that would limit transfer of cases to the feds, but the language isn’t as strong as H3114.

The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. During the 2016 legislative session, the state closed the loophole.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

WHAT’S NEXT

Joint Committee on The Judiciary will need to pass one of the bills by a majority vote before the legislation moves forward in the process. The committee also has the option of combining provisions into a new bill, or amending any one of the three.